Andhra HC (Pre-Telangana)
Veesam Mohan Reddy vs Rebba Pedda Agaiah on 23 November, 2007
Equivalent citations: 2008(2)ALT329, AIR 2008 (NOC) 1217 (A. P.)
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This civil revision petition is directed against the order dated 20.4.2007 in E.A. No. 653 of 2006 in E.P. No. 326 of 2005 in O.S. No. 494 of 2002, on the file of the Court of II Additional Junior Civil Judge, Warangal.
2. The revision petitioner is the judgment-debtor No. 1, who suffered a decree for perpetual injunction in O.S. No. 494 of 2002 in respect of suit schedule property. The 1st respondent/decree-holder filed E.P. No. 326 of 2005 under Order 21 Rule 32 of Code of Civil Procedure, to commit the judgment-debtor to civil prison for a period of one month, alleging that the judgment-debtor prevented him from cultivating the land in violation of the decree granted in O.S. No. 494 of 2002.
The revision petitioner/judgment-debtor filed a counter denying the alleged interference with the possession of the decree-holder and stating that, as a matter of fact, there was no land in existence as described in the suit schedule. It was also alleged that under the guise of the decree granted in O.S. No. 494 of 2002, the decree-holder himself was trying to interfere with the possession and enjoyment of land belonging to him covered by Ex.B9.
3. While E.P. No. 326 of 2005 was corning up for enquiry, the decree-holder/respondent herein filed E.A. No. 653 of 2006 under Order 16 Rule 14 of Code of Civil Procedure with a prayer to summon the judgment-debtor No. 1 for subjecting himself to cross-examination, pleading that the judgment-debtor No. 1 having filed a counter opposing the Execution proceedings, intentionally did not appear before the Court to give evidence to avoid cross-examination. The judgment-debtor No. 1 filed his counter opposing the said Application. The Court below after hearing both the parties, by order dated 20.4.2007, allowed E.A. No. 653 of 2006. Hence, this revision petition by the judgment-debtor No. 1.
4. I have heard the learned Counsel for both the parties and perused the material on record.
The learned Counsel for the petitioner vehemently contended that since there was no evidence in chief on behalf of the judgment-debtor No. 1, he cannot be compelled to subject himself to cross-examination. It is further contended that the impugned order directing the judgment-debtor to face cross-examination was beyond the scope of Order 16 Rule 14 of Code of Civil Procedure, since the said provision does not entitle a party to the proceedings to make an application to summon a person to give evidence.
On the other hand, the learned Counsel for the respondent submitted that the impugned order is in accordance with the settled principles of law and that the Court below rightly summoned the judgment-debtor No. 1 to subject him to cross-examination, since it is essential to elicit the tote facts of the case.
5. Chapter-X of the Indian Evidence Act, 1872 deals with the examination of witnesses. Section 138 of the Evidence Act, 1872, which specified the order of examination of witnesses runs as under:
138. Order of examinations.--Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.--The reexamination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross-examine upon that matter.
As could be seen, Section 138 laid down the order in which the proceedings are to be conducted while examining the witnesses. A plain reading of Section 138 shows that a witness shall be first examined in chief and then can be cross-examined if the opposite party so desires.
6. Thus, it is clear that the other party has a right to cross-examine only when a witness, who has been called by a party to give evidence, has been examined-in-chief in some way. In other words, there cannot be any cross-examination without examination-in-chief. There is no other provision in the Evidence Act, which enables tendering a witness for cross-examination without his being examined-in-chief.
Though Order 19 Rule 1 of Code of Civil Procedure empowered the Court to order production of the deponent of an affidavit for cross-examination even in the absence of any examination-in-chief, it is to be noted that Order 19 is a special provision which is applicable where any particular fact or facts can be proved by affidavit either under a special enactment or by agreement of parties. The ordinary rule is that a decision on fact must be decided on evidence recorded in the open Court as provided under Order 18 of C.P.C. The said procedure may be dispensed with by the Court in certain circumstances under Order 19 Rule 1 of C.P.C.
7. Since, admittedly, the present case is not a case which can be tried by affidavits, the procedure under Order 19 Rule 1 of C.P.C. has no application. In the circumstances, the learned Counsel for the petitioner contended that the judgment-debtor cannot be compelled to subject himself to cross-examination.
However, the learned Counsel for the respondent while relying upon Order 16 Rule 14 of Code of Civil Procedure contended that the Court in exercise of its discretion under the said provision can summon any person for cross-examination without his being examined-in-chief.
Order 16 Rule 14 of C.P.C. reads as under:
14. Court may of its own accord summon as witnesses strangers to suit.--Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such documents.
8. As could be seen, Order 16, Rule 14 of the Code of Civil Procedure empowers the Court to summon on its own any person to give evidence or to produce any document in his possession if the Court is satisfied that the evidence of such witness is necessary to arrive at a just conclusion. The said power includes to summon even a party to the proceeding. Though the language of Rule 14 shows that such discretion has to be exercised by the Court at its own motion, the law is well-settled that such a power can be exercised even on an application made by a party to the proceedings, since the application if any, can be taken as an information to the Court.
Having regard to the scope and object of Order 16 Rule 14 of C.P.C. which is intended to enable the Court to secure the attendance of a witness whose evidence appears to it to be necessary, I am of the opinion that the mere fact that a party to the proceedings has not chosen to appear before the Court to give evidence does not disentitle the Court to invoke the power under Order 16 Rule 14 of C.P.C. to summon such person to appear for cross-examination.
9. In the case on hand, while opposing the suit claim, the defendant No. 1/respondent herein in his written statement pleaded title and possession in respect of the land covered by Ex. B.9 Registered Sale Deed. The trial Court while recording a finding that the land purchased by the defendant No. 1 under Ex. B.9 was different from the suit schedule land decreed the suit granting perpetual injunction as prayed for, making it clear that the said decree cannot be availed by the plaintiff/revision petitioner to make use against the defendant No. 1 in respect of his land purchased under Ex. B.9 sale deed. When the plaintiff/revision petitioner filed E.P. No. 326 of 2005 alleging that the defendant No. 1 interfered with the possession and enjoyment of the suit land in violation of the decree, the defendant No. 1/respondent herein opposed the same pleading in his counter that under the guise of the decree the plaintiff was trying to interfere with the possession and enjoyment of his own land covered by Ex. B.9. It was also alleged that no land was in existence as described in the suit schedule and therefore the decree cannot be executed. In view of the said specific stand taken by the defendant No. 1/respondent herein, the Court below, having recorded its satisfaction that the cross-examination of the judgment-debtor is necessary, has allowed the application filed by the decree-holder under Order 16 Rule 14 of C.P.C. and directed the judgment-debtor who was present in the Court to face the cross-examination. The said discretion exercised by the Court below in the peculiar facts and circumstances of the case cannot be held to be erroneous.
10. It is to be noted that cross-examination under Section 138 of the Evidence Act need not be confined to the facts to which the witness testified in his examination-in-chief, but he can be examined as to the whole of the case. In the case on hand, since the veracity of the stand taken by the judgment-debtor in his counter requires to be tested to elicit the true facts, the Court below, in exercise of its discretion, rightly directed the respondent herein to subject himself to cross-examination. The said discretion which can be traced to the power conferred under Order 16 Rule 14 of C.P.C. does not suffer from any legal infirmity warranting interference by the Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
Accordingly, the civil revision petition is dismissed. However, it is made clear that the judgment-debtor No. 1 is at liberty even to lead evidence in-chief, if he so desires, before subjecting himself to cross-examination. No costs.